Torres v. Madden

Filing 6

ORDER (1) Construing 5 Motion for Order to Show Cause, As One for Extension of Time; (2) Granting Motion; and (3) Re-Notifying Petitioner of Filing-Fee or IFP Requirement. It is ordered that Petitioner's case remains dismissed without preju dice. If Petitioner wishes to proceed with this case he must, no later than 9/29/2017, either (1) 1) pay the $5.00 filing fee or (2) move to proceed in forma pauperis. Signed by Judge Janis L. Sammartino on 7/26/2017. (IFP packet Mailed). (All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIGUEL ANGEL TORRES, Case No. 17cv865 JLS (PCL) Petitioner, 12 13 14 ORDER (1) CONSTRUING MOTION AS ONE FOR EXTENSION OF TIME; (2) GRANTING MOTION; AND (3) RE-NOTIFYING PETITIONER OF FILING-FEE OR IFP REQUIREMENT v. RAYMOND MADDEN, Warden, 15 Respondent. 16 (ECF No. 5) 17 18 19 20 21 22 23 24 25 26 27 28 Presently before the Court is Petitioner’s Motion to Show Cause and Motion to Comply to Court Order (“Ext. Mot.”). (ECF No. 5) Read together, Petitioner (1) requests that the Court “[ex]cuse his lack of procedural facts[,]” and “submits [(2)] his $5.00 filing fee and [(3)] all the grounds submitted at the California Supreme Court for review and exhaustion.” (Ext. Mot. 1–2.) Given the foregoing, the Court construes Petitioner’s Motion as one for an extension of time by which to respond to the Court’s prior Order Dismissing Case Without Prejudice and Giving Notice of Options Due to Failure to Exhaust State Court Remedies (“Prior Dismissal Order”). (ECF No. 2.) Previously, the Court dismissed without prejudice Petitioner’s Petition for Writ of Habeas Corpus due to (1) Petitioner’s failure to either pay the required $5.00 filing fee or move for in forma pauperis status, (Prior Dismissal Order 1), and (2) Petitioner’s failure 1 17cv865 JLS (PCL) 1 to indicate that two of his five claims had been exhausted in state Court, (id. at 2). The 2 Court then “notifie[d] Petitioner of his options[,]” (id. at 2; see also id. at 3–5 (outlining in 3 full Petitioner’s options)), and gave Petitioner until July 7, 2017, to correct the above- 4 described deficiencies, (id. at 6). On June 16, 2017, Petitioner attempted to comply, in part, 5 with the Court’s Order by filing a non-compliant document stating that it was a scrivener’s 6 error that “[P]etitioner did not mark on the respective space to state that he had already 7 filed the claims four and five, as he did on claims one, two and three.” (ECF No. 3-1 8 (noncompliant, Court-rejected document entitled “Motion in Support of Clerical Error”).) 9 Petitioner did not mention the filing fee. (See id.) 10 Next, on July 14, 2017, Petitioner filed the instant Motion, (Ext. Mot. 1), attempting 11 to detail “all the grounds submitted at the California Supreme Court for review and 12 exhaustion[,]” (Ext. Mot. 2).1 Accordingly, it appears that Petitioner has chosen the first 13 option outlined in the Court’s prior Order. (See Prior Dismissal Order 3 (“Petitioner may 14 file further papers with this Court to demonstrate that he has in fact exhausted the claims 15 the Court has determined are unexhausted.”).) And although it is not entirely clear that 16 Petitioner has in fact exhausted each claim, (compare Ext. Mot. 6–9 (potentially the point- 17 headings from the underlying habeas petition to the California Supreme Court, alleging 18 that “cumulative prejudicial effect” or errors “denied [Petitioner] a fair trial under state and 19 federal due process[,]” but nowhere mentioning any alleged failure by counsel to seek a 20 mistrial), with Pet. for Writ of Habeas Corpus 20, 25 (Petitioner’s federal habeas petition 21 arguing that “the cumulative effect of errors . . . violat[ed] . . . federal due process 22 /// 23 24 25 26 27 28 1 Petitioner’s latest filing, although dated July 6, 2017, (Ext. Mot. 1), was not received until July 14, 2017, and therefore is not timely pursuant to the Court’s Prior Dismissal Order, (see Prior Dismissal Order 6). However, it is clear that Petitioner attempted to at least partially comply with the Court’s directive, (see ECF No. 3), and Petitioner further notes in his Extension Motion that “the person who was helping [P]etitioner to file his habeas corpus [petition] was transferred to another prison, taking with him any documents filed in any court, without explaining [to] petitioner any of the document[s] [which had been] filed or any due dates[,]” (Ext. Mot. 1). Therefore, good cause appearing, the Court GRANTS Petitioner’s Motion for an extension of time by which to respond to the Court’s Prior Dismissal Order. 2 17cv865 JLS (PCL) 1 principles” and that “Counsel violated [P]etitioner’s 6th Amend[ment rights] . . . whe[n] 2 he failed to move for a mistrial”), ECF No. 1), the Court accepts Petitioner’s argument. 3 However, although Petitioner in his Extension Motion states that he “submits his 4 $5.00 filing fee[,]” (Ext. Mot. 2), and attaches a Moneygram receipt for $5.00, (id. at 12), 5 the Court has not received Petitioner’s $5.00 filing fee. Accordingly, Petitioner’s case 6 REMAINS DISMISSED WITHOUT PREJUDICE. If Petitioner wishes to proceed with 7 this case he must, no later than September 29, 2017, either (1) pay the $5.00 filing fee or 8 (2) move to proceed in forma pauperis. If petitioner chooses to pay the $5.00 filing fee, he 9 should submit the fee simultaneously with a copy of this Order and reference the case 10 name—Miguel Angel Torres v. Warden Raymond Madden—as well as the case number— 11 17cv865-JLS (PCL). See also Fees of the U.S. District Court; 28 U.S.C. § 1914 and Local 12 Rule 4.5, United States District Court (Feb. 8, 2017), 13 Attorneys/SiteAssets/SitePages/FeesOfTheUSDistrictCourt/FEE%20SCHEDULE%20Ef 14 f%202-8-17.pdf (explaining Southern District of California filing fee amounts and 15 payment procedures). 16 Additionally, although the Clerk of Court previously sent Petitioner a blank Southern 17 District of California In Forma Pauperis Application, (see Prior Dismissal Order 6), the 18 Clerk of Court SHALL send another blank form along with a copy of this Order. 19 20 IT IS SO ORDERED. Dated: July 26, 2017 21 22 23 24 25 26 27 28 3 17cv865 JLS (PCL)

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